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TMI Blog2012 (4) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciation for the impugned assessment year as well on WDV basis. The rate adopted in computing the income reflected in the return was 15%. But later, the assessee found that the rate of 15% claimed by the assessee was not the correct rate prescribed in the rules. The assessee, therefore, filed a letter before the assessing authority to rectify the rate of depreciation and apply the prescribed rate of 80%. The Assessing Officer rejected the subsequent claim made by the assessee in the course of assessment on the ground that the assessee had not in fact, exercised its option to claim depreciation either on WDV method or on straight-line method and so also has not applied the correct rate of depreciation provided in the rules. The prayer for rectification in adopting the correct rate of depreciation was not acted upon by the assessing authority. 3. The rule provides an option to the assessee to claim depreciation on windmill either on WDV method or on straight-line method. 4. In first appeal, the Commissioner of Income-tax(Appeals) observed that the relevant rule does not specify that the option has to be exercised by the assessee by filing a separate format before the assessing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at any point of time. Certain benefits contemplated by the statue are linked to the return of income being filed within the due date laid down in section 139(1) [like the tax holiday benefits contemplated by section 80-I, 80-IA etc.] or the option being exercised before the due date laid down in section 139(1), like the benefit currently agitated upon. In this case the "revised claim" of the assessee was made for the first time on 13-11-2009, which is well after the due date. 5. The Assessing Officer had clearly opined that the ratio of the decision of the Hon'ble Apex Court in the case of Shelly Products 261 ITR 367 is not applicable to the facts of the assessee's case (in page 6 of the assessment order). This was not accepted by the CIT(Appeals). The facts in the case of Shelly Products (supra) were totally different and a paragraph in the judgment cannot be quoted in isolation, to emphasize a point in another case whose facts are totally different. In the case of CIT v. Sun Engineering Works Ltd. 198 ITR 297(SC) has frowned upon such an approach, stating clearly that a judgment is being rendered on the facts and circumstances, as applicable to the said case. A para or sentenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The provided course of action is to file a revised return of income as held by the Hon'ble Supreme Court in the case of Goetze (India) Ltd. v. CIT (284 ITR 323). 10. The learned Standing Counsel further contended that both on merit on the question of opting the method of depreciation and also on the question of jurisdiction on considering a claim in the course of assessment in the absence of a revised return, the assessee has no case and the Commissioner of Income-tax(Appeals) has grossly erred in setting aside the order of the assessing authority on this point and in allowing the appeal filed by the assessee. 11. Shri M. Narayanan, the learned authorized representative appearing for the assessee, on the other hand, explained that the windmill was commissioned in the second half of the previous year, relevant to the assessment year 2006-07 and thus, the assessment year 2006-07 was the first year in which the assessee had claimed depreciation on windmill. Therefore, the quantum of depreciation, whether under straight-line method or under WDV method, will be the same for the assessment year 2006-07, as it was the first assessment year in respect of depreciation. The mistake commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed depreciation is an apparent testimony to show that what is the course of action opted for by the assessee. In the immediately preceding assessment year, the claim of depreciation was for the first year, the depreciation was claimed on the original cost even though at a wrong rate. In the impugned assessment year, the depreciation was claimed again at wrong rate but on WDV method. Therefore, it is very clear that the assessee has exercised its option for choosing the method of providing for depreciation as prescribed in the statute. We agree with the factual finding of the Commissioner of Income-tax(Appeals) on this point. 18. Regarding the question, whether a claim made by the assessee in the course of assessment proceedings by way of other than filing a revised return, we have to state that exactly similar issue was considered by the Punjab & Haryana High Court in the case of CIT v. Ramco International (332 ITR 306). In that case, the assessee had claimed deduction under sec.80IB. Though the assessee had furnished Form 10CCB and other requisite documents, the Assessing Officer made the assessment without referring to those documents. In first appeal, the Commissioner of Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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